The New York Times reports that FBI agents have fanned out to conduct interviews of state and nursing-home officials in New York. At issue, as I’ve previously outlined, is an investigation of whether the administration of Governor Andrew Cuomo misled the federal government when it provided data on COVID-19-related deaths of nursing-home residents.
The feds began asking New York and several other states for data in August 2019, in the course, apparently, of determining whether to open a broader civil-rights investigation based on a federal law designed to protect institutionalized persons.
Earlier this year, Cuomo’s top aide, Melissa DeRosa, admitted to New York legislators that the Cuomo administration had withheld information from them about the true number of nursing-home deaths. The true number was significantly larger than they had previously indicated, because, DeRosa said, they feared that, if the information became known, the Trump Justice Department would use it to attack Cuomo politically. It has since emerged that the data was suppressed well before the Justice Department began asking questions, in an effort to burnish Cuomo’s image as a masterful manager of the pandemic challenge.
The administration has retained Elkan Abramowitz, an incomparable criminal-defense lawyer, to represent the governor’s office in the probe. He told the Times that the state’s “submission in response to D.O.J.’s August request was truthful and accurate and any suggestion otherwise is demonstrably false.” I had many dealings with Abramowitz as a prosecutor, and while I would often disagree with him about facts should be interpreted (which is how it naturally goes between prosecutors and defense lawyers), he was always honorable in representing what the facts were, which is why I like him so much.
Clearly, a major issue will be whether the state’s representations to the feds were not only truthful and accurate, but also complete. False-statements cases can turn as much on what is omitted as on what is asserted.
On the investigation reported by the Times today, the FBI is working with federal prosecutors in the Eastern District of New York. The criminal probe appears to be separate from pre-existing investigations by the Justice Department’s Civil Rights Division and Civil Division (they’re different), which could involve civil claims.
